Kang (Migration)

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 485, by an applicant who is a citizen of South Korea. The applicant sought review of a decision affirming the refusal of his visa application. The central dispute revolved around whether the applicant had met the English language proficiency requirements stipulated by the relevant regulations.

The Tribunal was required to determine whether the applicant had satisfied clause 485.212 of Schedule 2 to the Migration Regulations 1994. This clause mandates that an application for this visa must be accompanied by evidence of either undertaking a specified language test and achieving the required score within a specified period, or holding a passport of a type specified by the Minister. The relevant instrument, IMMI 15/062, detailed the acceptable tests, scores, periods, and passport types.

The Tribunal reasoned that the applicant did not meet the passport requirement under clause 485.212(b). Regarding clause 485.212(a), the applicant had undertaken an IELTS test prior to the visa application, but the score achieved (5.5 overall) was below the minimum requirement of 6. While the applicant later provided results from PTE Academic tests undertaken after the application date, these tests did not satisfy the requirement that the test be completed within the three-year period immediately preceding the visa application. The Tribunal noted that it had no discretion to waive these regulatory requirements, and the applicant's reliance on incorrect advice from a migration agent did not alter the legal position. Consequently, the Tribunal affirmed the decision not to grant the visa.